During Confiscation Proceedings Magistrate Has No Jurisdiction To Release Vehicle Seized U/S 72 UP Excise Act: Allahabad HC

The Allahabad High Court on Friday observed that during the confiscation proceedings initiated under the Uttar Pradesh Excise Act, 1910, the Magistrate has no power under sections 451 or 457 Cr.P.C. to release the vehicle in question.

The Bench of Justice Syed Aftab Husain Rizvi has concluded thus in view of the law laid down by the Allahabad High Court in the case of Ved Prakash vs. State of U.P. 1982 AWC 167, wherein it was held that during the confiscation proceedings u/s 72 of UP Excise Act, a Magistrate is not empowered to release the seized vehicle.

The case in brief

Essentially, the Bench was dealing with a 482 CrPC Application filed by one Akhilesh Kumar whose vehicle had been seized under the UP Excise Act [Sections 60/72 of U.P. Excise Act and Section 272, 420 IPC], and therefore, he had moved the court of Chief Judicial Magistrate, Mainpuri, asking the release of the vehicle, however, the plea was dismissed.

This order was upheld by the Court of Sessions Judge, Mainpuri in revision. Thereafter, the petitioner/applicant moved the High Court challenging the impugned orders.

The counsel for the applicant contended that the learned Magistrate had rejected the application on the ground that he had no jurisdiction as confiscation proceeding was pending under the UP Excise Act, however, it was further argued the view taken by the Magistrate was erroneous.

Court's observations

At the outset, the Court noted that the Magistrate had rejected the application filed by the petitioner on the ground that during the pendency of the confiscation proceedings under Section 72 of the U.P. Excise Act, the Magistrate has no power to release the vehicle. This view was upheld by the revisional court as well.

In this regard, the Court went on to examine the question as to whether during confiscation proceedings under section 72 of the U.P. Excise Act, the Magistrate is empowered to release the vehicle.

The Court first referred to the rulings of the Allahabad High Court in Nand v. State of UP 1997 (1) AWC 41 and Rajeev Kumar Singh v. State of UP and ors 2017 (5) ADJ 351, wherein it was held that the Magistrate has jurisdiction to release the vehicles seized under the UP Excise Act.

However, the Court further noted that in the case of Ved Prakash vs. State of U.P. 1982 AWC 167, another Bench of the Court held that the Magistrate had no jurisdiction in the matter.

Further, the Court observed that the Allahabad High Court in 2019, in the case of Virendra Gupta vs. State of UP 2019 (6) ADJ 432 (DB), examined the controversy and after interpreting various provisions of Cr.P.C. and U.P. Excise Act, came to the conclusion that during the confiscation proceeding, the Magistrate has no power under sections 451 or 457 Cr.P.C. to release the vehicle.

In view of this, the Court, while dismissing the instant plea, observed thus:

"It is clear that during confiscation proceedings, the Magistrate has no jurisdiction to release the vehicle seized under section 72 of U.P. Excise Act. The findings recorded by the learned Magistrate and upheld by the revisional court are according to law. There is no illegality or infirmity in the impugned order and the application U/s 482 Cr.P.C. is liable to be dismissed."

Case title - Akhilesh Kumar v. State of U.P. and Another
Case Citation: 2022 LiveLaw (AB) 90

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